COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bu mgardner and Senior Judge Overton Argued at Richmond, Virginia

ANTOINE CLAYTON SMITHERS MEMORANDUM OPINION * BY v. Record No. 2144-02-2 JUDGE LARRY G. ELDER OCTOBER 14, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OFTHE CITY OF RICHMOND Richard D. Taylor, Jr., Judge John B. Mann (Levit, Mann, Halligan & Warre n, on briefs), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Antoine Clayton Smithers (appellant) appeal s from his jury trial conviction for possession of a firearm while in possession of cocaine or heroin, in violation of Code § 18.2-308.4. 1 On appeal, he contends the evidence wa s insufficient to prove he possessed the firearm found on the roof of the house he shared wi th his sister and others . We hold the evidence was sufficient to support the conviction, and we affirm. Under familiar principles of appellate review , we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwea lth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "Circumstantial evidence is as co mpetent and is entitled to as mu ch weight as direct evidence,

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.

1 Appellant was convicted in the same pro ceeding for possessing heroin and possessing cocaine. He does not challenge those convictions on appeal.- 2 - provided it is sufficiently convincing to excl ude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). "[T]he Commonwealth need only exclude reasonable hypoth eses of innocence that flow from the evidence, not those that spring from the im agination of the defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Here, appellant was convicted for possessing co caine and heroin that Officer Rhodenizer found on the roof of the house in which appellant resided. Appellant does not contest those convictions on appeal. Thus, we consider onlywhether the evidence wa s sufficient to prove he simultaneously possessed the firearm also found on the roof of the house. The possession necessary to support a convic tion for the simultaneous possession of a firearm and cocaine or heroin pursuant to Code § 18.2-308.4 may be actual or constructive. See, e.g., Logan v. Commonwealth , 19 Va. App. 437, 444, 452 S.E.2d 364, 368 (1994) ( en banc ). Establishing constructive possession requires proof "that the defendant was aware of both the presence and character of the [item] and that it was subject to his domini on and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). A person's ownership or occupancy of premises on which the subject item is found, proximity to the item, and statements or conduct concerning the location of the item are probative factors to be considered in determining whether the totality of the circumstances supports a finding of possession. Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 831-32 (1997). Possession "need not always be exclusive. The defendant may share it with one or more." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc ). Here, Officer Rhodenizer appeared to gi ve conflicting testimony regarding which bedroom was appellant's and which bedroom was hi s sister's. Nevertheless, the only reasonable hypothesis flowing from the evidence in the recor d, viewed in the light most favorable to the- 3 - Commonwealth, is that, whether or not the bedroom was appellant's, he actually or constructively possessed the firearm and drugs found outside the window of that bedroom. When Officer Rhodenizer entered the house at about 1:00 a.m. to serve appellant's sister, Delma Clarke, with a felony arrest warrant, Clarke was on the first floor of the residence. When Clarke went rapidly up the stairs to a second floor bedroom, Officer R hodenizer followed five to ten seconds behind her at a similar pace. Clarke entered the bedroom and closed the door. When Rhodenizer had almost reached the top of the stairs, he heard Cl arke say from behind the closed bedroom door, "The police is downstairs. I thi nk I got a warrant. Th e police are downstairs." "Immediately after hearing this," Rhodenizer r eached the top of the stairs, and behind the same door, he "heard a noise and a bang, . . . maybe a door opening or closing." Officer Rhodenizer then opene d the door to the bedroom and saw appellant standing with his torso and arms out the open bedroom window . Clarke was standi ng on the opposite side of the room from appellant and the open window, and the evidence supported th e inference that she had been in the room only a matter of seconds. When appellant saw Officer Rhodenizer, "[h]is eyes got real wide" and "his jaw dropped." He pulled himself back into the room, reached up, "rapidly" closed the window, and attempted to flee. No evidence in the record established that Clarke engaged in suspicious or evasive be havior after Rhodenizer entered the bedroom. Although Officer Rhodenizer did not see anythi ng in appellant's hands and did not see appellant make any sort of throwing moti on as he leaned out the window, Rhodenizer immediately found drugs--both heroin and cocai ne--and a firearm outside the bedroom window. It had been raining throughout the night, but the rain had st opped just a few minutes before Officer Rhodenizer arrived at appe llant's residence at about 1:00 a.m. The firearm, which was not located under an overhang or anything else that would have pr otected it from the rain, was damp on the bottom but dry on top, permitting the infe rence that it had been on the roof for only- 4 - a brief period of time. Similarly, the plastic ba gs containing the drugs were wet on the outside, but their contents were not satu rated. Although the drugs were several feet from the window and appeared to have been thrown onto the roof, th e firearm was directly beneath the open window, easily within appellant's reach. When Officer Rhodenizer climbed back into the room after finding the drugs and firearm, appellant became ag itated and again attempted to flee. The only reasonable hypothesis flowing from this evidence, viewed in the light most favorable to the Commonwealth, is that appellant exercised first actual and then constructive possession of both the drugs and the firearm and th at he was attempting, based on Cl arke's warning, to dispose of the items so that they w ould not be found by the police. Appellant argues that Clarke could have thrown either or both of the items out the window and, thus, that the evidence is insufficient to prove appellant po ssessed them actually or constructively. However, the evidence indicates that Officer Rhodenizer quickly followed Clarke up the stairs and into the bedroom, eliminating the possibility that Clarke, who was standing on the opposite side of the room from the window when Rhodenizer entered, could independently have discarded the firearm through the open window before appellant discarded the drugs. That Clarke may also have had actu al or constructive possession of the drugs and firearm before appellant attempted to dis pose of them through the open window does not diminish appellant's guilt for the charged offense. For these reasons, we hold the evidence wa s sufficient to support appellant's conviction for violating Code § 18.2-308.4, and we affirm. Affirmed.